tv Politics Public Policy Today CSPAN May 18, 2015 5:00pm-7:01pm EDT
ambassadors to appoint ambassadors and from that we degree arrived a general idea that the president has the power to execute foreign affairs. that includes some ability to use the military. and then on top of that, you have the chief chevy clause. the president is the chief executive of article 2 which many argue that that in and of itself is a grant of power to the president that he can use in this area. those are the way the powers are laid out generally in the constitution. most people are relatively comfortable saying that the founders probably intended congress to be much more involved in this area particularly in war powers than they are today. the way it was originally drafted. but over type, we've seen this evolution of power toward the president. why has that occurred? for several different reasons primarily the president is a unitary actor. he has the ability to act independent lit whereas congress has to muster the will of 535 people. that's often a problem.
they often can't do that. what often happens is the president acts through history, the president has acted and congress even where many of them may disagree with his use of power have been unable to muster the political will to check him. that creates a precedent for future action. a recent example of that is libya. in libya, we were involved in 2011 in bottoming libya. many congress spoke out against that. the president was in violation of his war powers but no action evolved to curb his activity in that case. what we've seen over time is power evolving toward the president. this doesn't mean that the congress is no longer important at all in in area. they still have a significant role to play primarily flowing from the idea that they are the orally the branch of our government that is supposed to declare war. we don't declare war anymore. that's become obsolete since the 1940s but we have modern day
equivalents of that. there's still a role for congress in determining when we use force. the president is always on stronger ground if he can act consistent with congress. the president will often look to his commander in chief power and say look i have the power whether congress is with me or not but the president always looks to have the support of congress when he can to act. so in the particular instances specifically with isis but in a lot of our conflicts today what is the authority that the president is relying on? it's primarily a couple different ones. the primary one is the aumf authorization of military force from 2001. this is the authorization that was passed right after 9/11. it gives pretty broad power but it's in specific regards to 9/11 so it says the president is authorized to use all necessarily and appropriate force against nations organizations or persons hes planned, authorized committed or
aided the terrorist attacks that occurred on september 11th it, 2001. you can see the intent of congress in that language was focused clearly on the terrorist attacks of 2001. yet, the president has relied on that for many of the uses of force that we have seen over the last decade to 15 years including places like yemen and somalia and even in specifically he's currently relying on that for use of force in iraq against isis. so that's the basis he's currently rely. there's other thorizations out there, authorization for the use of military force from 2002 that was specifically passed in preparation for our invasion of iraq in 2003. so now the problem with that one, however is it was specifically directed at the threat created by saddam hussein. so there's been talk, it says that the president can use force to end threats coming from iraq is the basic language of that aumf. problem with that it was
clearly directed at saddam hussein. the threat here isn't exactly coming from iraq. you can make the argument it does apply. the other political implication is and it may be more important in this case is that that would link president obama with the president bush's policies and the invasion of iraq which he certainly has separated himself from over the course of his political career. although that one has been thrown around, that's not really the one the president seems to be primarily relying on for his current use of force. and then, of course, the problem with the 2001 is aumf is it was directed as those forces associated with 9/11. so is isis and its force associated with 9/11? that's somewhat problematic given we know isis is currently in conflict with al qaeda which is the force that we primarily link with 9/11 but the administration would argue that well, isis directly flows from our al qaeda in iraq that we were fighting there from 2003 until we left iraq and so therefore, it is an associated
force. but you can see just from the language, it's kind of problematic. we're now 15 years later and the president is still relying on this aumf as his domestic authorization for use of force. that's what has led the president to ask for a new aumf updated. and by the way, the president made a speech a year ago or so at the national defense university before the conflict with isis arose in which he said the president, i the president and future presidents need to stop relying on aumf from 2001. it can't last forever. makes the speech and turns around the a year later and using that very same aumf to support our armed conflict against isis. you can see the problems that arise from that. that's enurged the president to ask for or request this new aumf, the one he's proposed. it's got this both specific language in it but language that kind of gives him some
interesting leeway that i think that professor goodman will talk about. i want to briefly orient it out what he's asking for. his proposed aumf says as the president -- the president is authorized subject to limitations to use the armed forces of the united states as the president determines to be necessary and appropriate against sisal or associated persons or forces. then if you go down further he has some restrictions. the authority granted in subsection a does not authorize the use of the united states armed force in enduring ground operations. that's an interesting are terp one not previous used in any legal documents, this idea of what is an enduring offensive ground operation. and then also, esadditionally puts limitations and now he says the thorization for the use of military force shall terminate three years after the date of enactment. unlike 2001, the president is proposing this one includes a built-in terp nation date. that meeds to the final thing
that i wanted to talk about from my perspective is, the military operational perspective. what is the military likely to think or what would be their role in the discussions of this aumf? again, i don't speak foolishly or personally from the official position of the department of defense. but i can tell you generally what the military wants in any military operation is they want one clear objectives of what they -- what they are expected to accomplish and two, they want operational flexibility. all right? so looking at this proposed aumf, i can imagine the leadership in the department of defense thinks that three years is problematic in and of itself because it's ar temporary. if you give us specific objectives how do we know if they'll be accomplished in three years and what if they're not. so i can imagine that or i can say it's likely the leadership in the department of defense will not participate in the public debate of whether this proposed aumf should or should not be passed because that would
tend to go against the idea of civil military relationship. the idea that a civil government is in charge of our military. so as a cultural matter generally the military leadership doesn't participate in this kind of open debate in the public as to whether we should accept this aumf or not. what they probably are doing behind the scenes both with the president and with members of congress is talking about operational flexibility and the concerns that this idea of no enduring offensive ground operations is a potential limitation on the military and more specifically probably they're concerned about this idea of a three-year limitation. so my sense is that the impact that will have is it will just make this harder for this to go forward because if the military leadership is both telling the president they're concerned about this and maybe he says okay, he got it this is still important to me for various reasons but they're probably also talking to members of congress and saying this is the problems or concerns we might
have. certainly that's going to influence some members of congress and may influence whether this goes forward or not. so those are the operational considerations. that's the general lay out. i think with that i want to turn it over to professor goodman to talk about the aumf and maybe the potential problems. >> thank you. there's a terrific overview that makes my job easier. i thought i would drill down deeper on the aumf and certain concerns about how it's structured an designed. just to kind of give a sense of where we're at currently in terms of what's happening on the hill and why we're at this point, two things to just think the about, one is drilling down on the concerns that the 2001 aumf don't really authorize current operations that are on going in iraq and syria. that's the deep problem that there's been a lot of bipartisan statements on the hill especially when representatives from the administration come before congress saying we aren't buying this theory that isis is
somehow underneath the 2001 aumf in part because it really was about the attacks of 9/11. the government's argument just so we're clear about that is not what the some people think which is that sisal is an associated force of al qaeda central but rather that isil is a successor of al qaeda. so that helps in some respects because the administration says even if there's fighting between the two groups, it doesn't matter because we're not saying they are in association with each other in a battle against the united states, rather isil was disaffected from al qaeda central, broke apart, and now is an independent group that they kind of have taken the mantle of al qaeda central and they in fact think and say they are the true inheritors of bin laden's campaign. that's the argument but it lacks support. i think it's incredibly weak partly because one presumption there is that they were ever
truly unified. the intelligence community was unclear even in the first years in 2003 when the united states was fighting al qaeda in iraq what the relationship exactly was because al qaeda in iraq was not exactly follow pentagon the command and control of al qaeda central from afghanistan and pakistan. there was a lot infighting until they broke apart. some people say what about the name? it was called al qaeda in iraq. that was a name that the coalition forces ascribe to them. some say they ascribe to them in some sense to try to tell the public that these groups were related, that saddam hussein and the situation in iraq was related to 9/11 and afghanistan and pakistan but that was our u.s. and multinational forces application of the name to the organization. there's open question were they ever truly unified before they broke apart. the second question is not just the structural relationship but organizational goals, does isil,
did it have the same organizational goals as al qaeda. one of the reasons they split apart, isil had local and regional ambitions and didn't necessary pose a threat to the u.s. homeland. the president has said there's been no evidence of an imminent or likely threat against the u.s. homeland from isil. al qaeda of iraq when the group formerly known as al qaeda of iraq when the u.s. withdrew from iraq, then they stopped attacks against u.s. forces and the like. so there's been a long period of time in which there was no real threat, even to the point that in summer of last year, the white house had sent a letter to speaker boehner saying we no longer need the 2002 aumf because there's not a threat to the united states coming out of iraq. another indication that they didn't actually pose a direct threat to the u.s. some people cite to the beheadings of american journalists. just be careful. beheadings of american journalists started happening
after the u.s. started its air campaign, not before. so it can't be a justification for the air campaign if it was response to it. >> there is inherent weakness to a successor model and concerns about the relationship organizationally between isil and al qaeda central as to whether or not they really have split apart and still fighting a fight against the united states. with that the concern is that if the president is not acting under an existing statutory authority, then he's not acting with congressional support. everything the colonel said i would agree with with respect to the president is stronger when he has congressional backing. both as a constitutional legal matter but also a political matter so that i would imagine troops on the ground don't just want to have a operational flexibility but also want to know that the american public and the congress is behind them. so that some statements now being made by members of congress, senator cane just made it this week, how can we have people sacrificing their lives in iraq and syria in the u.s. armed forces and congress
isn't doing its job to vote and design it how they see fit but to give that kind of support and approval to the president's operations. recently on the hill, in the last 24 hours, apparently there's a letter circulating on behalf of the democrat and republican ranking democrat on the house intelligence committee, adam schiff and deputy republican representative tom cole asking boehner to please put this to a vote so the that congress can actually step up. that kind of goes to the question that we have for us tonight in this panel, there's kind of an important quote that i'd like to take out of that letter where they say, each additional day that passes without congress taking up an aum ft. or operations against isil undermines our authority
and role in matters of war and peace. if we refuse to debate on the way the nation faces whether to take military action, we creed to the framework intentionally delegated to congress. that's the chief concern that operates hipd the scenes, whether or not we're going to see congressional action on the white house proposal. >> i do have deep concerns about some aspects of the white house proposal and the first one i want to highlight is the definition of associated forces. for the first time, what the white house wants is for congress to codify the notion that we won't just be going to war with one entkist isil but whatever its associated forces are. currently the united states operates under the framework that under the 2001 aumf, we're in an armed conflict with al qaeda and its associated forces which might be al qaeda in the arabian peninsula in yemen. but that's an interpretation that the administration has given to the 2001 aumf. the words associated force in that sense don't appear in if
the 2001 aumf but they want congress to codify it. i think that would be code. it would codify what's been in existing practice by the administration, one thing that is remarkable is a conspicuous omission, the united states has been operating for several years for what are jeh johnson said is the definition of associated forces which says other organizations that join the fight alongside the principle group, similar to the way that cobelligerence in the terminology is used in cobelligerence did in world war ii. if japan strikes in world war ii and allies with italy, italy is part of the battle. similarly that's the definition we've been operating under which gives a lot of justification why the united states would be in conflict with al qaeda and then with another operation out of yemen that joins the fight.
but what's conspicuously absent is the term co-belligerency. dropping that out raises some suspicions, the concern is wait a minute. that's the limit we've been operating under. how can you take that out? what's the idea behind it? congress hasn't asked the executive that question. there would be multiple hearings but i've never heard that question come from a member of the house, a member of the senate. in fact, what the administration has said suggests that without the co-belligerency test, i think there's a concern for slippery slope. secretary of defense ashton carter said before the senate foreign relations committee earlier last month that it might apply to isil wannabes. organizations that stand up and vote the idea of flying the isil flag but maybe aren't connected in a kind of cobelligerancy cooperating with isil but they might pop up in other countries libya, lebanon, nigeria and assert they are also operating under the brand of isil, that's
a concern. that doesn't seem top mit the belligerency standard but the administration is already invoking those types groups. even if you concern the same test you applied to al qaeda, isil is not like al qaeda. i'm in some sense at peace with the ways in which the administration has used the associated forces test over the past 14 years. it's fairly narrow. the general counsel confident dod just a couple of weeks ago at the american society are financial law annual meeting for the first time really listed an exhaustive list of all organizations that the united states considers to be an associated force. i'd say it's fairly narrow. but that's because al qaeda had a very high standard for anybody becoming an associated force. they were kind of a van guard movement. isil is considered to be more of a populist movement in which they do basically say lone wolf who's want to call themselves
isil can. they're opportunistic. they're working with the former baathists in terms of their organization. it's a much more open-ended and does mean there are a bunch of other forces and individuals that might associate with them. the last point to just put under the category of associated forces is the following kind of thought. i think it's very likely that congress isn't going to enact an authorization for isil, in that scenario, the united states government dysgoing to be acting under its current interpretation of the 2001 aumf applying. and the administration has said it doesn't need the isil authorization, it's almost redundant. they would like congress' buy in but if congress doesn't do that they already have the authority under the 2001 aumf. i would assume that means operating without the co-belligerency test to isil and status quo, not something we need to worry about for the draft language but in the status
quo, want to know the answer to the question, do they think they can apply force to wannabe organizations or do they in fact use the jeh johnson standard. the second point i wanted to highlight, also something the colonel touched upon, the sunset clause. just a couple of thoughts about that. one, i wouldn't call it a termination date because the idea is not that authorities will necessarily terminate the idea is that congress will get a second vote. the thought is if there's a three-year time frame three years from now, congress should be back at the table reauthorizing and tailoring the authorities according to the standard -- what the situation is at the time. some say congress shouldn't be involved because isil morphs. but i think the fact that the organization morphs and the conflict is almost unpredictable is an added reason why we want congress back from the table.
three years from now, not to terminate authorities but to reup authorities. if anything, that's another indication of how to get congress and american public behind the operations if they are justified. the merp forces would therefore know that they have the public behind them. one argument against having a sunset clause, it sends a signal of weakness to our enemies. they think we're only in it for three years. my thought is if we say we're afraid to have a re-up in three years' time that sends a signal of weakness that we're not sure we'll follow through. just to the wear another hat when jonathan mentioned some of my social science work, my other hat is in social science. this great political science studies that argue, have a finding that democracies wage and win wars more effectively than nondemocracies. when you have democratic checks and the inclusion of legislatures in the war fighting, that actually sends a
stronger signal to the enemies because you have to justify your actions to your public and build support. there's good political science evidence that says the more democratic in a certain sense states are, the more democratic in the way in which they wage wars sends a stronger signal. we also think it is important because it actually requires members of congress to justify to themselves to inform themselves and then inform the public about why the war is justified. the last point just to put on to that one is there's a curiosity in the white house's isil aumf. it does sunset the authorities for operations against isil three years from now. but it says nothing as colonel larimor said about the 2001 aumf. to me that's actually ilg logical for the following reason. if the united states administration says it's operating under the 2001 aumf and didn't need authorities then
we put on top of it an isil aumf in three years, let's say it terminates in three years then the white house will go back to the 2001 aumf. it defies logic. what's the purpose of a sunset if after three years you can revert back to the 2001 aumf and continue along? the best answer seems to be that you need to have a sunset for both or in some respects or sunset for neither. the last thought is whether or not it's appropriate to have some kinds of sunset on authorization for force or authorization for war. the last departing thought i want to give to that, to suggest it's part of the dna of our constitution. the thought here is that we some ways already have sunsets on all authorizations to use forces in the appropriations clause in the u.s. constitution, article one of the u.s. constitution has a requirement in it that congress cannot appropriate funds for longer than two years and
hamilton actually writes in federalist paper 26 that the purpose behind that was to have buy-in from the congress. at least every two years. part of our strung structure that we work with understanding that we want congress at the table. we kind of lost that sensibility, and it's time to reengage with it. >> thanks to jonathan and thanks to city bar for allowing me to -- inviting me to voin this very interesting and important topic. and join this panel on this interesting and torn topic and to all of you for trucking out here in such great weather to come inside and listen to us talk about this. i want to take a step back and look at the same issues that colonelnaire more and professor goodman discussed but from sort of a broader perspective from a constitutional perspective to try to locate where we are sort
of from broad constitutional discussions and perspectives and then come back to some of the more technical detail issues that professor goodman just addressed. it's also, believe it or not, it's campaign season for the 2016 presidency already. so it's also worth thinking about where are we going forward with this, what are the candidates and the future administrations, what will their likely perspectives be on the allocation of war powers in these various scenarios that we've been discussing. i want to open with a quotation from someone who is both a teacher and a practitioner in the area of war power abc constitutional law. his name is barack obama. and he says the president does not have the power under the constitute to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. as many might have guessed, that statement is from the 2008
version of president obama, not the 2015 version. in this talk, i'll argue that candidate obama's view of the war powers as expressed in that statement in 2008 while he was a candidate, which i call the congressionalist view of war powers is incorrect. and that the strongest evidence that his very strict view that he offered is incorrect is that president obama himself has abandoned this view in his actions as president. this is important for setting the precedents both for debate currently over the isis and the town aumfs but also trying to understand the allocation of war powers under the constitution. let me begin by outlining what building on what the colonel explains, what i call the two
views of how war powers are allocated under the u.s. constitution which i think colonel narey more sort of outlined. i want to give a little more detail to it. i'm going to call the two views congressionalist view and presidentialist view. the congressionalist view reads the constitution as allocating the primary decision on the use of any military force to congress. as colonel alluded to, the constitution's text does allocate many more powers over military foreign affairs of congress than the president and so the main basis for this congressionalist view is in fact the text of the constitution. congress has the power to declare war, to raise the army and navy, to make rules governing those forces. in a congressionalist view, they have the primary responsibility for managing all aspects of the armed forces of the united states including the ultimate decision as to whether to use the armed forces of the united states in some sort of military action or armed conflict. the congressionalist view has
many adherents not just the 2008 candidate obama but also many eminent legal scholars such as john hart. now, the opposition of the presidentialist view which holds that the president has an independent and inherent power to deploy american armed forces in a war or an armed conflict even without a specific congressional authorization and it offers a different reading of the constitution which again the colonel alluded to and emphasizes the president as holder of the executive power and as the commander in chief of the u.s. armed forces. now, congress holds the power to initiate armed conflict and exclusive power to fund the u.s. military. but it holds the commander in chief power and gives the president the decision when and how to use the armed forces, including in an armed conflict.
a declaration of war, primarily serves to give form the notice to foreign governments that the u.s. will treat a foreign government as an enemy under international law such as by nullifying all relations and seizing their property and such. that is not about controlling whether or not military force will be used by the united states. now, the presidential view also enjoys the support of some eminent legal scholars perhaps not as many as the first view, but will argue a lot of support in the practice of presidential administrations throughout u.s. history. as a practical matter the difference between hoot views is not as large as it steams. even the most extreme congress has exclusive power to fund or not fund the military actions and even the most extreme congressionalist can see the constitution should be read although it doesn't say specifically, should be read to allow the president to respond to an actual or imminent attack without going to congress. but the difference between the
two views boils down to this, according to congressionalists, the president may not use force without a specific authorization from congress unless the u.s. is under actual imminent attack. presidentialists argue that the president can choose to use armed force in a wide range of circumstances if necessary to further the national security interest of the united states even in the incidence of an actual or imminent attack. so this leads me to my second point. while president obama campaigned fairly described as a congressionalist, he is pretty plainly and unan polgetically embraced the presidentialist view in his administration's defense of military actions especially in libya in 2011. so as colonel and professor goodman discussed, the main military action of the united states is involved in during
president obama's administration have been actions in iraq and afghanistan, both of which had specific statutory tori zags by congress. but in 2011 when the united states and allies intervened in the civil war, there was no authorization and president obama did not seek an authorization from congress. in fact, his department of justice office of legal counsel issued a legal opinion which rejected the kong greggsist view and defended the libyan action as a constitutional exercise of the president's inherent powers to use military force even absent a specific authorization from congress. it's worth noting thatting this opinion did not claim that the libyan civil war in any way constitute add actual or imminent threat to the united states. but in this opinion, assistant attorney general argued that the libya actions were unconstitutional even without congress and she specifically rejects the kong greggsalist view the arguing defense of the
united states to direct an immediate attack is by no means the only time the president can use military force without congressional thorization. accordingly the absence of and self-defense interest does not mean the president lacks authority from military operations in libya. the opinion went on to advise the president coz engage in unilateral military operations to protect u.s. national interests such as preserving regional stability and supporting the united nations's security council's credibility and effectiveness. libya is not the only case departing from the view. in the fall of 2013, president obama announced he would seek congressional support for military strikes on syria in response to evidence that syria was using chemical weapons in its civil war but in making his statement that he was seeking congressional support, president obama was careful to state that he believed he was already possessed of constitutional authority to strike syria for the use of chemical weapons whether or not
congress gave him authorization. and a similar posture has been taken in current discussions over the action against islamic state in syria and iraq. in fact, last summer initially the administration suggested it could justify the use of force some of the uses of forces in iraq under the president's inherent powers. one example that stood out, the president's action to protect an ethnic minority trapped on a mountain in northern iraq, which was surrounded by isis forces. this again at that time, they thought was sort of not articulation of a justification of the 2001 aumf but there was a humanitarian justification that was posed linked to the president's inherent powers under article 2 of the constitution. and so the president has evolved this legal position to the legal condition to embrace the 2001
authorization for the use of military force but as professor goodman both suggested, a very difficult legal argument to support. but i do suggest that's one of the reasons why the administration is comfortable making this argument i think is that it has not ruled out it does have authority under the u.s. constitution article 2, separate from the 2001 aumf although it has clearly saw the authorization from congress has not ruled out the possibility that article 2 could provide legal justification for some if not many of the military actions that the u.s. has taken against isis. i'll argue that the rationale for the 2001 libya intervention is still out there and can support i think given the language of that opinion a constitutional basis absent congressional authorization at all, a constitutional basis for u.s. actions against isis. >> so let me just conclude with
a third point where i offer a defense of president obama's conversion from the kong greggsist to the presidentialist view even so i think we can see there's a sol rid strong texture and historical basis for the kong greggsist view, i'll offer three reasons why i think it's not the best reading today of the constitution's allocation of war powers. i don't think that the textural historical case for the congressionalist view is airtight. it is well documented had some doubts about given the power to congress and so that's why the initial draft of the constitution changed the war make war to declare war with the effect of congress's power so the word i think remains a little bit murk can i. and second i think historical practice in 1289 weighs heavily in favor of a presidentialist view. congress has only used the
declare war times five times and only specifically authorized the use of military force a few more times than that. meanwhile depending on the account, military force abroad without congressional authorizes and submitted 215 times. mostly and usually without congressional authorization and many of these actions range from very small actions such as invasion of panama in the 1980s to large actions such as the korean war or the action in coso vote in 1989. historical record at least shows that the main actors who interpret and apply u.s. constitution, the congress and president do not necessarily embrace in some cases have rejected the strict congressionalist view that candidate obama expressed in 2008. i think that is a functional as a practical matter complete adherence to a congressionalist view seems impracticalal and unwise given the position of the united states today as the world's largest military power and economic power.
the u.s. has national interest in almost every corner of the globe. it's also subject to more diverse threats moeth both large terrorist attacks large scale nuclear weapons and there's more of these types of threats than any other world power. >> the shear variety of possible military conflicts for the u.s. of military force for combatting terrorists and shooting pirates to preventing humanitarian catastrophes to confronting other military powers seems to support the idea that the strict congressionalist view is not practical in today's environment. to be sure, even if we abandon the victory view, there's still much room for debate over the exact scope of the president's independent powers. and the obama administration has given itself a substantive limit by saying although the president can use military force without congress, that force cannot
amount to what's a war. what is a war versus the use of military force is a very fuzzy definition. the bombing in libya was counted as not to be the use of military force and perhaps some other category of actions will not amount to a war. it's hard to figure out exactly what the line would be and it has the administration has not offered a very clear definition but this is one way in which we might adopt a presidentialist view without sort of giving the president unchecked power to engage in military force. the president can act independently without congress up until it engages in what a war is. there's a variety of other problems in that including the international definition of war means essentially that would be every action because there are almost no declared wars anymore. that's one way in which the administration has tried to do the power that it explained for itself. i think the disagreements as to what constitutes a war, i think
that there has been evolution in the obama administration towards i think the presidentialist view of how war powers are allocated under the constitution. i would argue even the current debate over isis where the president has saw the congressional authorization as professor goodman suggested, it south congressional authorization highway expressly point the out it doesn't need it. and adopted a very difficult and difficult to support interpretation of the 2001 authorization for use of military force. even without that, much more -- conception of the president's role in -- independent role in deciding when and how to initiate military conflict on behalf of the united states. so i believe that the conversion from barack obama from a strict congressionalist to presidentialist is a welcome and even understandable development and i do hope that the candidates in the 2016 cycle recognize this although i fully
expect many of them to make statements that will perhaps not demonstrate full understanding of the issues that they're facing. but i hope they recognize the weaknesses of the kong greggsist view before they wholeheartedly embrace it. >> thank the three of you for those illuminating comments. i'll invoke my moderator prerogative to start the questioning off with the first one and then hear from members of the audience. so i think we'll jump off from the professor's presentation and the distinction between congressional and presidential war powers and both as a legal matter and as a practical matter his argument that the -- or the
case for presidential war powers. so i want to give both the colonel narey more and professor goodman an opportunity to respond to that and i'll frame the question this way. so lieutenant colonel narey more you talked about clear objectives and flexibility as the key principles operational which could be although not necessarily would be might be in conflict with one another, right? i wonder whether for you whether the model presidential war powers over congressional war powers is more amenable or would be easier to carry out though as balance those to clear objectives and flexibilities opposed to the congressional model. professor goodman you have
incredibly rich discussion of the current debate around the aumf and the possible new authorization for an isil specific aumf. and i wondered whether this does this debate support or in it your view profess her verse which as i read is is that the congressional approval is perhaps sal utory and beneficial for various reasons but not required and that that's being bourn out by the context of both the last 14 years and also the current debate. >> so i certainly think that the actions of the military, the culture of the military, what the military is seeking probably enables the evolution of power for the president.
in fact, he's made bad legal arguments to try to force himself to force the argument that it's actually operating under congressional authority. so some of the arguments with respect to the war powers resolution in libya was because this administration has, in fact embraced the war powers resolution more than
otherizations and then said, oh but we meet the war powers resolution because it doesn't rise to the level of hostilities and the like which are kind of stretches of legal arguments but i think stretches because he's not unan polgetically embracing a strong commander in chief article 2 presidentialism model. he is trying to fit within kong greggs dpl. the same thing with the bergdahl exchange. instead, it was almost like a constitutional avoidance question interpreting congress's restrictions on moving people out of guantanamo to be consistent with presidential power so there is more like a statutory interpretation. surely congress didn't want us not to the engage in this exchange. last one is, at least on the table counter evidence. because i think julian just listed out a lot of points that were in favor but counter evidence. march 2009 in will for habeas claims coming out of guantanamo
the federal judge required the administration to give its legal rationale. i don't think the they were comfortable at the time. they were kind of forced to give it and in a brief march 13th of 2009 was an important moment in which the president said i'm not claiming article 2 commander in chief authority, only claiming i'm operating under the 2001 aumf which is a remarkable move by a president which is not to claim more power and claim less. we have to take it into account if we have an interpretation of what the president has done. it's a little bit more mixed direction. >> thank you. thank you. before we turn this over to the audience professor, i'll give au opportunity to respond. >> yeah, i think i don't want to overstate. i don't disagree exactly with things that ryan cites. professor goodman cites. i did want to suggest, i guess what i'm suggesting is that there's kind of different degrees of congressionalism.
i'm more interested to see what folks like senator paul or senator cruz and some of the candidates who are interested in this issue will talk about in the future because in 2008 it was very neat for candidate obama to say, look i'm a new guy. here's the view. it's very simple. president cannot use military force unless there's, unilaterally without any imminent threat to the united states. my narrow point is from what i consider an extreme position that president obama took in 2008, that position has -- that position is gone in the sense that that extreme position which is that he can't act and use military force without congress unless there's an actual or imminent threat to the united states, that's off the table. i think what put that off table is libya 2011 where he explicitly, his administration explicitly disclaimed that i consider extreme congressionalist position. i don't intend to argue that president obama is in any way,
way an extreme presidentialist. my point was that he's moved off from what i consider to be the extreme congressionalist view and done so for good reasons because that view, which is actually the view shared by a lot of leading scholars and many politicians, that extreme view is not supportable. no modern president and i predict any president who enters the office just like he did will not actually follow that extreme statement that he made back in 2008. that the president cannot use military force without congress unless there's an actual imminent attack. i don't mean to suggest he argues that if congress comes later and tries to restrict the president, they can't restrict him. i don't care myself believe that's a very good view. the point is congress could restrict the president but when congress doesn't act, the view is article 2 authorizes and i think president obama authorizes
the president to use military force abroad even without specific congressional authorization, even without an actual or ipnent threat to the united states. so the narrow argument i'm making but i think it's a but i think it's a fair one given not so much the practical issues that the administration has been wrestling with over the past seven years, but the broad brush claims that we are -- we love congress and support congress, not all about a power. it's a more complicated view. that's the point i'm trying to make here. and i don't disagree that with really in some ways like all administrations, it's not consistent. i think i would agree with the president's characterization of the administration has often made very difficult maybe even wrong or knowingly wrong legal arguments under statutes because they don't want to make the obvious article two argument in other contexts outside the one i was discussing such as the bergdahl issue or the other
context we mentioned. i wouldn't suggest a full presidentialist but moved off what i consider the extreme congressionalist view. >> thank you. >> so now i'd like to open it up to questions from the floor. if you would please come up to the microphone if you have any questions. please come up to the microphone. yes. the one to your right. on the stand, yeah. [ inaudible ] >> if you don't mind, please.
>> -- state supreme court. i didn't think of it before i came here, the colonel has talked about enduring -- enduring -- what did you say -- we've been in germany, japan, korea for 70 years or so, are those in the category of enduring operations? >> not in the way that the president is using in the proposed aumf, we're there based on treaty, in korea based on treaty and in germany based on agreements with germany and nato treaty. >> now, you haven't spoken of any specific war powers authorizations during korea and vietnam era. i don't know if there were any. but if someone wanted to put an end to the vietnam war, a member of congress introduced legislation and congress
declined to declare war on north vietnam while in full military operations, what would happen? >> i think this is a good question that goes to the professor's discussion about the presidential view. if that were to happen, it's not unreasonable or not an unreasonable interpretation for the president to declare that congress is infringing on his independent executive authority. you could get to a broader discussion of the idea of presidential power specifically in a situation where congress is going directly contrary to some military operation the president is trying to participate in. >> i'm done. >> i don't take the view that congress cannot restrict at all against military action. i think what i'm suggesting is congress does not always have to initiate it which i think some people try to talk about a lot, unless it's after the fact notion that a president -- >> i'm not sure you understood the question properly. it would have delivered to the
nation and the world and the enemy -- is this coming through, working? that the congress doesn't want it even though the president was, whether or not the president has the authority. thank you. >> thank you. >> come on down. >> my name is david freeman. before i have my question, congress did do what the previous questioner asked, in 1971 repealed the resolution and nixon claimed under article 2 that he had the right to continue the war. i have a question for the professor. in 1991 and 2002, both president bushes sought congressional authorization and received it, assuming they did not under your view of the presidential war
power, if it committed u.s. forces to those operations, would that have been unconstitutional or constitutional? >> i think that as long as congress doesn't specifically ban them, i think it won constitutional to execute military action in both cases just as it was constitutional for president clinton -- even though congress did not authorize, i was thinking about it, there was a declaration of war introduced over kosovo which was not supported and voted down by the republican house. so i think that's why -- i think congress can come in and say you have to get out like they did in vietnam but i'm not sure -- i'm with nixon on that. launching military action, i think they can do so. >> so there are virtually no limits. >> the limit is congress can stop them or congress -- people noted every two years congress
has to vote on a funding bill and they can and has voted the bill be defunded. it can restrict war powers if it chooses to certainly under the funding clause or other statutes after the fact to limit the operations. my point is that initiation of the military force. i think the precedent suggests that the president has broad power to initiate the use of military force, absent congressional ban or prohibition on it. >> does professor goodman agree with that? >> no, i think there has to be some limit. i think if we're saying that taking the nation to war, i think having congress the power to declare war is part of the idea even if we don't have declarations of war we have authorizations to use force, kind of a requirement.
the president certainly has a residual authority to act but that's in defense of nation. against something like an imminent attack in which there's actually no time really to go to congress. even in that situation, one would think after a certain period of time when it's no longer imminent, and if it's going to be a long-term commitment by the nation, that's -- >> so -- [ inaudible ] >> kosovo might be, the only question is then, one other element -- i should also say caveat, i'm not a constitutional law scholar. >> i'm just curious. >> just, i should register the caveat. the clinton administration tried to justify which is that congress then appropriated funds and did the appropriation of funds count as authorization?
i also think it might be some of the background game that the administration is playing now with respect to isil, which is even if congress doesn't get its act together to approve an authorization at a certain point, the administration is going to be asking but they already asked for large amounts of funds. if they ask for funds to carry out operations, congress funds that, there we go. congress has implicitly given some form of authority. i think it's troubling, deeply troubling and in some sense we're taking the most extreme kinds of conflicts or cases but i wouldn't have a problem retrospectively thinking did clinton act without authority maybe so -- >> it's a fair question, and one of the interesting thoughts, why would president bush, so-called
famed unilateral presidentialist, why did he go to congress? it's unclear what he thought he had the authority. fair suggestion he thought he did have authority. the reason why presidents go to congress is not for legal but for practical and political. i totally agree that it would be better in every way for congress to authorize -- especially substantial and before it actually happens and any presidents do so -- there's literature, when they think they'll be engaged for a long time, they are more likely to seek authorization ahead of time to get political buy-in. my point is simply that as a practical matter and legal matter, the president has and president obama's administration argue they have the power to initiate military force even if it's not in response to actual or attack without congress. >> if i might just piggyback with a follow-up question. in the context of a, for example, invasion of iraq, however you regard whether
president bush needed congress's approval beforehand presumably the war powers resolution would have kicked in and acted as a limit on a kind of traditional conventional use of force there where u.s. ground troops were introduced into hostilities. and i guess the question is if we're looking at the war powers through the conflicts of the 21st century and whether it's legal or practical, a president is going to want to see congress buy-in before committing american troops to a long-term conflict overseas but those conflicts seem to be increasingly the exception and the new conflicts raised with limited use of troops and special forces and more with the use of drone strikes. and other methods of conducting armed conflicts in the norm. the question is, is it a sense this congressional buy-in, whether legal or practical
fading as a result of the realities of armed conflict today? >> i actually don't -- to some degree with respect to the initial use of force, i think congress will always be deeply involved through the funding and by the way as a footnote, i think one of the reasons the obama administration became embedded with the 2001 aumf for the isil action is because they were worried about the war crimes resolution and couldn't get around the war powers resolution just on an article 2 argument because -- even if they believed they have the inherent authority to go into iraq and syria to go after isil, that goes out after 60 or 90 days. they didn't -- i don't even myself believe that the president can override the statute. my point is that unless congress
doesn't stop him they can initiate the course. >> it's hard to -- i mean the administration argued that libya wasn't a violation of the war powers. on its face, it seems like it was a violation of war powers act. but i certainly -- seems like congressional view -- probably more consistent with the founders, and the presidential view is consistent with realities, particularly today, more practical and just more consistent with modern warfare. >> yes, please. >> my name is phil bronner, i would like to ask if any member of the committee would support the proposition that the authorization by the congress of the funding for specific activities proposed by the
administration in syria or iraq or otherwise, in concert with the pending war powers proposal, could be read constitutionally as a de facto authorization of force that has been requested. >> that arugment has been made along with other arguments and pretty much every conflict where congress didn't have a specific authorization, it was made in korea and vietnam. that is one of its arguments as to why its use of force is permissible and supported by congress. >> in this case, however, there's a debate in the committees that focuses on the change in the structure of the
defense budget, pretty much to get past problems of sequestration but the result would be under one proposal, a much more focused allocation of resources. does that make a difference? >> i suppose it could under the theory that the clinton administration promulgated with respect to kosovo. i expect if you have specific appropriations for the ongoing operations, then under that theory, yes. but i'm not sure -- i'm not supporting the theory. the other concern might be if you have forces on the ground or in theater, maybe congress by appropriating funds rather than taking back funds is just trying to protect the troops, not a signal that they approve of the
operations but rather with those kinds of facts on the ground, they have no choice but to support the troops financially. but that shouldn't be read to be that they actually support the operations as a political matter that they would authorize them. i think there's -- some of the competing concerns how you would interpret it and war powers resolution itself in terms of as an assertion of congressional authority says appropriations shouldn't count. >> thank you for that answer. one follow-up if i may. >> yes, please. >> it's striking that the administration picked three years as its sunset date with length of a congressional appropriation cannot exceed two years as was mentioned by one of the panel earlier. do you have any idea why three years was chosen?
>> i don't know three years in particular, but i do think that they wanted it to be a determination that would be made by kind of a future congress and the next president after the next president is in office with enough time that they don't have to race to a decision. why they picked exactly three years, not sure about that. >> you also have to presume there was at least some consultation with the military. i'm sure the military would have said we don't really want this limitation but if you're going to place it, at least there was probably some consultation as to what the various options were and how they might impact the military and how long the military thought it might need to accomplish the mission or the objectives as they currently are. >> may i keep going -- >> well, i think we'll have one final follow-up question and then we'll wrap up from there. >> i haven't heard anyone
describe any coherent argument other than the ones that have been considered deriving from the congress as justification for inactivity. is that just because we were considering other issues or is it because nobody has heard a coherent argument defending inactivity? >> could you clarify -- at least for me -- what you mean by inactivity? could you clarify what you mean by inactivity? >> there's been a proposal for a war powers statute, and -- >> why congress won't vote for it? >> the failure to take action on an authorization, is that -- >> yes. >> well, there's never going to be complete inactivity because as we talked about, you still have the funding issue, so they have to continue to fund the military and fund the operation. so there will never be absolutely no activity.
>> i think also, you know, the administration may not be excited if it gets voted down, right? so i think there's a political split in the congress like there is in the country i think. some people think they want a tougher -- they're not happy with limitations. some of the critics in congress are not that they don't want to authorize it, they want to vote to authorize it. and there's some folks that don't want to authorize anything. if you can't build a coalition, it's a simple political reason. why does congress not act? it usually is because they're divided and can't agree, frankly, like the country. >> and just to further that same line of thought, the chair of the senate foreign relations committee has said that at this point he doesn't have democratic support for the president's authorization because of the lack of limitations in it, and
he's unwilling to kind of pass an authorization along party lines because of the signal that that then sends. it's more of a political argument, not a legal or constitutional argument, but the signal it sends to isil and the potential allies, iraq, if we, in fact, pass an authorization but it's right down party lines. and then you could blame either party. could you say that the democrats aren't accepting it without their limitations and the republicans aren't giving any limitations. so it's who knows where you apportion the blame. and then the second part i think that senator corker is saying in a certain respect is and then why should i pour so much political capital and the rest of it into this when the administration is telling me they don't even need it? if the administration were coming and saying we really need this from you as an additional authority that we otherwise don't have, maybe so, then they can justify that, but if the administration says we just want to hear from you but if you don't do it, we're -- nothing is
going to change on the ground, he kind of said i'm a person who wants to do something to make a difference. if it's not going to make a difference on the ground according to the administration, then why? >> it seems that the public pressure that was building or around -- when the issue first came up before the midterms has dissipated somewhat, which relieves i think pressure on the actors, particularly in light of what julianne and ryan pointed out. well, i wanted to thank our panelists for an incredibly rich discussion of this important topic that goes to fundamental questions about our constitutional structure and the role of the president and congress in what are challenging and changing times. if you would join me in a round of applause for our panelists, thank you very much. and thank you all for coming.
look ahead to some of our live coverage on c-span 3, faa administrator michael huerta will testify at 10:30 a.m. eastern. and then a hearing about body cameras live on c-span 3 at 2:00 p.m. the former deputy director of the cia, michael morell spoke today, outlining successes and failures during his time.
you can hear all of his remarks after the house goes out or any time online. here's a preview saying. >> just published an expose saying that the pakistani intelligence knew about the raid beforehand. >> he alleges a lot of things in this story 10000 words. that the pakistanis were keeping his compound. and that we learned about this from a senior pakistan member
for $10,000. and it's all rubbish. almost every sentence in the article is wrong. i was in the room for every discussion about this at the cia and at the white house. i was there when our guys came in and said we have followed somebody we believe to be bin laden's courier to his home in pakistan. i was there when our guys walked the compound for months. i was there when our guys came to the conclusion he was there. and nobody else, i saw in the media this morning, some confidential german sources are saying they provided the
information. not true. i was there when the president of the united states decided not to tell the pakistanis in advance. not that we didn't want to. we simply couldn't trust the pakistani system not the government, but the system, not to have leaked the information and have it get back to bin laden and have him leave before the raid. and they were deeply angry with us, and i was sent by the president of the united states to pakistan to put the relationship back together after the raid. so everything seymour hersch said was wrong. whoever his source was, was not in any room i was in. >> tonight, on the communique
tore tors members of congress on privacy and net neutrality. >> the bulk collection, authorizes it, because last week, we found out that the second court agrees, the patriot act, never authorizes these prom programs. and the court proceeded to write a warrant that covered every american citizen. i think our founding fathers would be apalled. >> and i think our policy is out of date. we have copyright policy from
the 1950s. i started working on e-mail in 1989, and now, we have e-mail as a standard form of communication, one of the most popular popular, and we have a situation where a piece of paper in your drawer they would need a warrant to access that situation. but an e-mail is not subject to that. >> and we're not making a comment about the specifics. we're saying, the internet needs to be open and free, and something that the government, any time the government gets involved, it's an open-ended pandora's box. and they can't answer some basic questions about their rules. we're saying, let that be an
issue for elected officials, but not put in place by bureaucrats. >> tonight, on the communeicateors communicators. now, a discussion on surveillance and transparency. coming on the heels of a supreme court ruling that said bulk collection of americans' phone records is illegal. and from the sunlight foundation, this is one hour, 45 minutes. >> so, i'm just going to open now. first, thank you to c-span for
being here. and to the committee on oversight on government reform for providing the room. this is an event on surveillance and transparency, sponsored by the sunlight foundation. this event, who's watching the watchers is focused on educating policymakers on solutions with regards to surveillance. my name is sean vitka. our goal is to ensure that congress and you in this room are able to do their jobs.
surveillance paired with goals of civil liberty and transparency transparency. we're going to talk and then have a "q" and "a" session. and to do quick introductions to my left bob litt, the general counsel for the office of intelligence since 1989. and then fritz schwartz who was chief counsel to the church committee. and to his right, patrick toomey on staff at the aclu
national security project. and he was one of the litigators working on the decision yesterday. and to his right, mika oying she was the chief of staff of represent choo. and do a two to four minute introduction and i'm hoping at least one thing they think staff should know that they do not know. >> hi, i'm mika eoyang. i just want to say a few words about how congressional oversight works in the current context. oversight of intelligence programs by congress is hampered
by three different benchmarks. one of it hampered against public oversight. by necessity, the programs need to be secret but that means you are deprived of all the tools that you would have in other places. you have to forego that, and people take their responsibilities very seriously on other committees. but with congressional oversight, it's hampered compared to some of the other committees in its access to gao, cao, cbf, and access to whistle blowers. that's the challenge. congressional oversight on intelligence between the house
and senate. house members unlike the senate counterparts, they don't get to hire a staffer that works for them to help with their security business. and don't have access to a technical support working group. and the house intelligence committee has much greater control of the dissemination of information. and they acknowledged that all senators had been given access to a document whereas the house had not been. so there's a difference between house members and senators. i feel like that's a lot of things, so i'm going to stop there. >> thank you. patrick? >> my name is patrick toomey, i
work for is aclu on surveillance-related cases. including the case decided yesterday, and wikimedia versus the nsa, and other cases where surveillance authorities believe they have been used, a case in colorado where the first defendant is litigating that authority. and i start by saying that the decision yesterday shows that a little sunshine can make quite a big difference in how these programs are evaluated. that's a point that the second circuit expressed to me. and they expanded on in the conferring opinion.
the type of robust judicial review in that opinion is certainly welcome. but i would say to everyone here today, that unfortunately that type of review is not reflective of the broader reality when it comes to these surveillance programs. there's three ways there can be review, civil challenges in public courts, another is criminal challenges, with a motion to suppress, and a third, when providers who receive orders bring challenges. and each of those avenues is currently broken. in the civil context, the government has used the standing and state secrets challenges to stop these from going forward. in the criminal context the
government uses parallel construction and disclosure of fica related content. in the context of providers, it's very clear their interests are not aligned with the privacy of their customers. and in fact they've been granted immunity when they comply with court orders to release their customers' information. and those need to be fixed. >> fritz? >> my name is fritz schwartz and i'm chief counsel at the brennan center for justice. and 40 years ago, i was on the church committee, i was then 39, i didn't know a senator. what would i say just to pick
out one thing that may be interesting to people not around at that point? in my new book, "democracy in the dark," i have a chapter on information. but the atmosphere on the church committee was extremely non-partisan. our most important finding probably was that every president from roosevelt through nixon, four democrats and two republicans had abused their powers. that helped us with credibility. and -- he had called for a major information of the intelligence agencies 20 years earlier then circumstances changed, and he
was majority leader. he constructed it to be nonpartisan. it was 6-5 in the senate and instead of the leader of the republicans being called the majority, the ranking member, and not having really any power at all, senator tower from texas was the vice chairman, and had the powers of a vice chair and presided often. and mansfield, he picked senators that were not people that had supposedly overseen the fbi and cia, although in both cases, they said please don't tell us what we're doing. he picked people not tainted by that and people that he thought would be capable of working in a
nonpartisan way. that's extremely important if you're trying to oversee and change an intelligence body. >> thank you. bob? >> i would just say i think that, as i said before sorry i'm bob litt, i'm the lawyer for the director of national intelligence. one of the things i think the entire intelligence community has learned, we do need to be more transparent if we want to maintain public support for our mission. my view is frankly if we had been able to be more transparent about some of the things we do in advance of the leaks, they would not have been nearly as controversial. i think some indication of that, the fact that members of
congress who did know about those programs were not particularly troubled about them with a few exceptions. i think that in general, we can be a lot more transparent about how we interpret the laws, and the procedures we use and the oversight mechanisms we have. we can't be more specific about the intelligence we gather. there are risks of transparency. intelligence has to be conducted for the most part in secret. if we release everything we do we wouldn't be able to do it anymore. i can tell you, terrorists are looking at articles in
newspapers passing them to each other, and saying things like and this is close to a direct quote, stay away from "x" service, because we know the nsa is on it. so, there are definite risks to transparency. and we have to strike a careful balance while protecting our ability to protect people. >> thank you. so, i just want to give a little bit of recent context, then i'll pitch it to fritz for a little bit more. the congress ruled that a set of human rights advocates didn't have the right to sue the government. under section 502 of the fica act. a few months later the world
learned who edward snowden is. and yesterday, the supreme court ruled that collection of phone data of all americans is unlawful. it's directly compared to the church committee. fritz, how did the country get to the need of the church committee? >> the climate of the times is vital to understand. after world war ii there was for 15 years at least, and probably more a general acceptance that the government was, knew what it was doing and the press and people should kind of stay away. then there was a lot of frustration over vietnam is the government being fair-minded and the pentagon papers brought out that it hadn't been fair-minded in what it was saying publicly.
watergate made the public worry about even president being involved in improper illegal conduct, surveillance break-ins to psychiatrists' offices things like that. j. edgar hoover was dead. that made a big difference, would congress have looked at it if he was not? i don't know. and nixon had tried to use the cia to shut down the fbi investigation of watergate. and there had been a series of leaks, there's an interesting comment in the opinion that the word leak isn't quite the right word. but there had been an interesting series of leaks about programs that were
troublesome troublesome. seymour hersch about the mailai massacre. and all those factors led to the church committee being founded and going ahead and doing the most comprehensive investigation ever. and i want to join in something bob and mika said. you have to recognize that some secrets are legitimate. and the church committee succeeded in part because we recognized that some secrets are legitimate. the government could argue that it would reveal something that shouldn't be revealed. and the parallel house
committee, which could have potentially done great good, because it was focusing on the quality of intelligence coming out, but it foundered and ultimately failed because it didn't accept that there are some secrets that are legitimate. >> fritz, a number of things were obviously unearthed by the church committee and the leaks. can you highlight some of them? >> i'm give three. one, martin luther king, we uncovered the document sent to him by the fbi after bugs, which, by the way, they were able to put bugs without even the approval of the attorney general, because an earlier one had said, do whatever. i don't want to know. so that put bugs in his hotel room, and put together a tape
which was designed to humiliate him to the extent that he would commit suicide. and the other thing about king, in information as in lawsuits you have to use facts that are illustrateive illustrative. they resolved we have to destroy martin luther king and find our choice for a new black leader. they came up with another one, he didn't know he was their choice. that was one. the cia, that was particularly terrible. the cia, hiring the mafia as part of their effort to kill fidel castro. and the nsa getting every single
telegram, the content of every single telegram that left the united states between 1945 to 1975. and just to add something that i think you probably would agree with me, this would not be the attitude today. bob, i assume you would. the general counsel of the nsa when i was going to expose the program, he said the constitution doesn't apply to nsa. >> i agree that i would agree with that. >> i gave you the opportunity there. >> and let me follow up. i think the description is a
good metric for measuring how different what's been revealed in the last couple of years with what was revealed by the church commission. the fact is the program we're talking about were all authorized by court order. there's disagreement on whether that order is valid or not. but the government got an order and operated within the order. and these were fully disclosed to the committee in charge. so, to compare this with what was going on with dr. king this shows how far we've come in terms of oversight and a lot of it is due to what the church commission did. >> and stellar winds not
authorized by court order, and it was several years before it came out from court supervision. >> i think this highlights one of the confusing elements of the current reform debate. it's been some time that we had a review that turned into legislation or reform. so, bob, the intelligence community may benefit from an investigation that finds this is not the case. instead, the lack of transparency around the issue leaves it open to the second circuit comparing it the current day to the church commission. >> i'm not sure what lack of
transparency you're referring to. >> well, the house intelligence committee or senate intelligence committee is in some ways broken or co-opted, we can replace that distrust with an effective committee. so the question is, is it time for a new church committee? fritz first but then i want to hear everybody's answer. >> well, a footnote to most of bob's points, i think are okay. but torture was never blessed by a court. it was blessed by a grossly inaccuratekcurate legal report. they didn't listen to anyone, didn't recognize that both
george washington and abraham lincoln had both gone against torture. and i have trouble taking all of what you say and accepting it in light of where mr. clapper was asked a question that clearly was looking at the metadata program. and the question is is the government collecting data on millions of americans hundreds of millions of americans. and he said, no. and then he said not wittingly. and that was not a truthful answer. what he should have done, i don't know. but i think you have to worry about whether in the new system the government is sufficiently candid with, when it testifies. >> you'll have to forgive me for
thick taking this back. on the issue of the surveillance i think the president has admitted it was wrong. i'm a bit of an expert on mr. clapper's testimony as i was a witness on it. when you say his answer was not truthful, that's not quite correct. as a lawyer, you know the difference between a mistruth and incorrect. and the director said that for him, he likes public hearing about intelligence as root canals and folding fitted sheets. we were notified the day before that the senator was going to ask the question.
and we did not, we didn't get a chance to review it. he was hit unaware by the question. if you see his question he's thinking clearly about the 702 program, he's talking about the incidental collection. so, after this hearing, i went to him and sayid you know, you were wrong on this. he had forgotten the sbisexistence of the 215 program. and i made a mistake that i did not think to counsel him to correct the letter. his lawyer let him down in that regard. but people make mistakes all the time. and that was just a mistake. >> all right. so, just to get to the yes or
no, i guess, here. yes on the committee or no? >> yes, i think a new church committee would be useful. not necessarily to come up with new dr. king stories. i doubt that will happen. but to assess how well the systems are working, the fisa court, the congressional oversight is working. and there's a lot that the public should know. >> and i might add, things that people may have forgotten. mika, please. >> on the question of a new church committee that is separate from the existing intelligence committees i would say this is something the intelligence committees could do with their staff. but the number of staff would
not be sufficient to the task. but i think the question you're asking in this context is very different. bob is right the members of the committee knew the contours of most of the programs that snowden revealed. but their level of knowledge was greater than the average person. but as we take a look at the surveillance programs, can we make an assessment about how effective they are, and make some judgment about the level of outrage that could occur if the programs were revealed, or the level of outrage based on the knowledge of programs now, against the benefit to the nation, in terms of national security. i think the intelligence community would value the
programs differently. and given the outrage, maybe make a different calculation about whether there's another way to do what they need to do to protect the nation without acquiring the communications of potentially billions of people unrelated to any national security interest. >> this gets i think significantly, to the question of access to information for represents on the intelligence committee versus representatives and senators that are not. do you think it's the appropriate line? >> the fact that most intelligence programs are overseen by a smaller group of people i think is right. there's significant risk to the
national security if some of the programs are revealed, how we target al qaeda, and groups that want to do us harm. but there are questions not about particular programs, and whether or not you can share that. clearly, the house made a different decision about sharing this with its broader membership. >> and members' claims to have been denied access to information, in light of the snowden leaks. should a representative be able to get the information that hipse sees? >> i think in the senate, if a senator had demanded that information, the intelligence committee would have given an
individual senator access to the things. i'm not sure what the rationale is of the house versus the senate is. >> it's a congressional limitation. >> and it's worth exploring, members denyied access, reasonably so. on a similar note, you talked about staff designees. one thing i've heard is a problem for a number of staff is clearances. can you explain the difference between the clearance system, which is necessary to access certain information, and i can jump to the chase here, but by your estimate how many staffers outside of the house intelligence committee have clearance to view this information?
let's say, sci, necessary for the level of disclosures we've seen from snowden? >> well, not all sci is created equal. it's compartmentalized for a reason. and the committee would have access to broader information on the staff, generally speaking, with sci clearances that entitle them to deal with defense programs that the military needs for its war fighting capabilities. there are a few sci-cleared staff on other committees but for the most part, most members of congress don't have someone cleared on that level to assist them with these kinds of things. >> fritz, does this strike you as a problem? >> well, i do think -- it wasn't
a problem for us. as i read about it members of congress have a limited amount of time, and they can't have a staff person who often is more broadly knowledgeable, and i think that's a problem. and my guess is the intelligence community ought to be able to decide if staff people are deserving of high-level clearances and then they could get rid of this rule that seems to say to senators or representatives, you have to do it all on your own and you have a limited period of time. but why can't they clear high-level staff members on committees or elsewhere on the congress? >> and can i say why it's so important that congress members aren't left on their own?
your average congress member without someone else to explain to someone else how the programs work they may not infringement, or understand the scope of the law in the fourth amendment when they are evaluating these programs. members of congress i think for the most part are looking at programs and asking themselves, is this helpful to secure our nation? and that's an important question and a threshold question but beneath that there are other questions where they may need help in order to frame the question appropriately and understand the answer that comes back. >> i would like to get bob's opinion quick. there is a video of a representative saying in response to a question from a town hall meeting saying
effectively that representatives couldn't have access as they wanted because they were potential security vulnerables which seems a bit inflammatory. i do not put that on the intelligent committee by any means. that is a political actor with a political statement. bob, from your respective recognizing there is a level of transparency that is too far and recognizing there could be more transparency access to classified information for at least one person in the 435 offices in the house, do you think that that is too far? >> i do not have a particular view on that. when the church committee made its recommendations, there was a need to strike a balance between congressional oversight and secrecy of intelligence operations. the balance that was struck at that time in both houses was to set up an intelligence committee by statute, we are required to
keep the intelligence committee fully informed of all intelligence activities and by large part we do that. and they have got ample staff, and not all of them are cleared into every compartment. the same is true for my office. there are programs on which i am the only person in my office, and there are programs i am not readied on. some of these are very tightly controlled. but the essential compromise that was made is that we would be open with the intelligence committees and they would be stand ins for the rest of the congress. question is whether the congress wants to modify that and how effective the oversight is going to be when it is oversight by all 535 members. i will tell you that in advance of reauthorization of some of these provisions several years ago we offered briefings to all members, few members bothered to show up including some members who are now complaining they
were never informed about these programs. if these matters are the importance the people say they are, then members of congress can come to the meetings >> they can leave notes there and leave them there later. >> they can if they leave them with the intelligence committees. >> could they talk to other representatives who did not make it about what they learned? >> bob and i might differ on this question. but i think the speech and debate clause in congress would protect members from talking to each other. if they're talking, speech and debate clause protects speech on the floor of the house. if they were talking to each other i don't know how the executive branch would say to a member of congress you can't do that.
the classification limitations. are an executive branch by regulation system. it has never been tested as to whether or not they could actually bind members of congress in the ways they communicate inside the legislative branch. >> that seems precarious to me, but i do want to move on. the usa freedom act is going to be in front of most staff very soon. certainly in front of a lot of staff. one of the things we have seen lost between last year and this years and the various versions of the usa freedom are transparency provisions. these are not provisions designed to rein in or curtail surveillance. as an advocate, it is confusing and alarming to see transparency on the bargaining table. for instance, in the current version of the usa freedom, there is no longer a requirement to state how many u.s. persons are affected by collection.
why are we having this fight? why is transparency the thing we are willing to give up? and i would add and this is to the intelligence community's credit that one of the things that we lost was a top line of 702 effect. the odni voluntarily reports that now and the freedom act has lower standard for 702 searches. i could be mistaken, but i am curious why is it that the transparency is on the line as this moves politically? maybe this is a political question for mika or something that the intelligence committee is actively opposing which bob may know more about. >> i cannot speak to what happened on the negotiations of 215 and since that is primarily that is a law enforcement program related to title 18 authorities it's not my expertise. patrick might have more sense of where that was in negotiations.
i don't know that i have a good answer on that. >> i can only speak of what was on the bill at one point and what is not in the bill anymore. and what i would like to see or expect in terms of transparency. previous versions of the usa freedom that were put forward last session provided certain transparency figures around the number of u.s. persons who are affected by 702 surveillance and other figures about the number of u.s. persons affected by the other authorities that are addressed by the bill. a number of those provisions have been stripped out, and that is concerning in my perspective because the logic behind the bill that was created was that there was some necessary or predictable ambiguity about how the bill would operate on the front end in terms of structuring the specific selection term and what the
scope of collection might be afterwards. but because of that uncertainty, because of that ambiguity there were back end protections built into the bill that were designed to protect information of innocent americans when it was collected and ended up in repositories of the corporate store of 215 phone records and to provide the public with information about the scope of collection down the line. that came by the transparency figures. now in the version that has been proposed this session, a number of those key figures, the very figures that would tell you how many americans are ending up in these databases are subject to collection under these orders have disappeared. not only that, but the fbi has extra exemptions. the agency that's engaged in law enforcement in the u.s. and that may seek to make use of this information is exempted from providing information about backdoor searches of 702 data,
searches through -- for certain types of 215 information and in a way that makes it impossible to understand how authorities that are being justified on the grounds of intelligence are being used in the course of ordinary criminal investigations. >> to go into the fbi exemption, bob, i'm curious if you had thoughts on this. in theory -- well in your introduction you said that transparency could be improved. it could be improved right now, couldn't it? >> as i also said, there is a balance that has to be struck between transparency and impact on security. i think that while -- and i'm not an expert in the details of the transparency provisions, frankly. but it's my understanding that some of the provisions were taken out and some of the existing provisions were strengthened. more detail was provided, and more transparency in some areas. the fact of the matter is, the
more you authorize release of information about specifically what we're doing the more you enable people to evade what we're doing. and that is the balance that has to be struck in any kind of legislation like this. >> i would think the most informative part there for policy makers would be the number of americans who are affected, and i do not mean the numbers who are targeted, that would also seem to indication a pretty broad number that wouldn't drive down to something that would compromise surveillance operations. bob, is that the case, or am i mistaken? >> it's difficult for me to answer that. there are other considerations that go into the issues of exactly what we can and cannot report beyond is it a good idea to report this or not and those are the kinds of things in many instances that i cannot talk about in this kind of a session.
>> would you agree it would be exculpatory for the community to be able to say that 100,000 americans were affected versus 300 million americans. >> i am not comfortable with the word exculpatory. obviously, people would be happier if were smaller numbers than if there are larger numbers. >> one thought i have is that i think it's important to distinguish between transparency in the existence of a broad program versus which i think in general there should be more of -- versus transparency with respect to how decisions are made on who to target, where i think that is something that there should not be transparency on. and to me, the founding error in the metadata program